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The People v. Dean Jacobs

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE


December 30, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DEAN JACOBS, DEFENDANT AND APPELLANT.

Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. (Super. Ct. No. 05ZF0120)

The opinion of the court was delivered by: O'leary, J.

P. v . Jacobs

CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Dean Jacobs appeals from a judgment after a jury convicted him of first degree murder and active participation in a criminal street gang, and found true he committed the murder while lying in wait, with a deadly weapon, and for the benefit of a criminal street gang. Jacobs argues: (1) the prosecutor vindictively prosecuted him on retrial by adding the lying-in-wait allegation; (2) insufficient evidence supports the lying-in-wait allegation; (3) the jury's finding on the lying-in-wait allegation may be based on a legally insufficient ground; (4) the prosecutor committed numerous instances of misconduct; (5) the court erroneously admitted excerpts of his jailhouse letters without admitting the remaining portions; (6) the court erroneously excluded evidence of his accomplice's juvenile convictions; (7) the court erroneously failed to instruct the jury two prosecution witnesses were accomplices as a matter of law; (8) the jury instructions on accomplice testimony were erroneous; (9) the jury instruction on aiding and abetting misstated the law; (10) to the extent any of his claims are forfeited, he received ineffective assistance of counsel; and (11) there was cumulative error.

Although we conclude the prosecutor erred during closing argument, and a portion of the aiding and abetting jury instructions was misleading, we conclude Jacobs was not prejudiced. None of his other contentions have merit, and we affirm the judgment.

FACTS

The Offense

Eliazar Diaz, a San Clemente Varrio Chico (Varrio Chico) gang member, was murdered by a member of the rival San Juan Varrio Viejo (Varrio Viejo) criminal street gang. In the year since Diaz's death, Varrio Chico tried to retaliate for Diaz's murder but was unsuccessful, and its reputation was suffering.

On the one-year anniversary of Diaz's death, there was a memorial mass. Between 9:00 and 9:30 p.m., that night, Gustavo Rivera saw a white Chevrolet Blazer with four men driving slowly through his neighborhood. Though Rivera could not determine who was sitting in the backseat, he was able to get a quick glimpse of the driver's profile. He described the driver as an 18- or 19-year-old Caucasian or Hispanic male with an "overgrown" shaved head and a bushy moustache or goatee, who was wearing a white or light-colored short-sleeve shirt.

Between 9:00 and 10:30 p.m. that night, Jacobs, William L'Hommedieu, Rafael Vasquez, Hugo Penuelas, and Aldo Martinez got into a white Chevrolet Blazer owned by Jacobs's sister.*fn1 They were going to San Juan Capistrano to look for

Varrio Viejo gang members. On the way, someone in the vehicle said they wanted to get a second knife, so they drove to a nearby alley where L'Hommedieu hid a butterfly knife. After retrieving the knife, they stopped to buy beer and continued to San Juan Capistrano.

When they arrived in San Juan Capistrano, they drove into claimed Varrio Viejo gang area and searched for gang members. They found a suspected

Varrio Viejo member walking with his girlfriend and drove next to him. Jacobs asked the man where he was from, and whether he knew another Varrio Viejo member, "Ishi." The man questioned whether they were "chuntaros," a derogatory name for Varrio Chico members. Jacobs told him they were from a Santa Ana gang and again asked the man where he could find Ishi. The man told Jacobs to leave, and Jacobs drove away.

About an hour later, Jacobs and his companions arrived at a gas station where they found Gonzales talking on a pay telephone. Gonzales asked if they were "chuntaros," just as the previous man had, and Jacobs again denied their affiliation with Varrio Chico, saying they were from Santa Ana. Jacobs asked Gonzales if he knew how to get in touch with "Ishi," who Jacobs said he met in jail. Gonzales walked away.

Jacobs and his companions saw Gonzales again later that night. Gonzales was walking by himself towards an open field when someone in the car spotted him. Jacobs made a U-turn and parked the Blazer in the field near a large tree. Jacobs and Vasquez emerged from the car with their knives and approached Gonzales. They grabbed Gonzales and stabbed him repeatedly. At some point during the stabbing, the butterfly knife Jacobs was using folded back on his hand, cutting his finger. Gonzales managed to escape Jacobs's and Vasquez's clutches and took off running. Covered in blood, Jacobs returned to the Blazer and they drove away, not knowing if Gonzales was dead.

Residents living nearby testified they heard two Hispanic men angrily yelling in Spanish (with Mexican accents) in the field. One was about 5'7", the other about 5'5", and they wore baggy sweaters and jeans, while one wore a baseball cap.

Jacobs and his companions returned to San Clemente. On the way, Jacobs handed the butterfly knife to L'Hommedieu, who cleaned it with a rag or his shirt prior to Vasquez throwing it onto the freeway. They drove straight to fellow Varrio Chico gang member Ramon Uribe's apartment. Upon arrival, Jacobs boasted about the stabbing and stripped off his blood-soaked clothing. He cleaned himself at an outside spigot while another Varrio Chico gang member, Richard Salazar, attempted to clean the blood from Jacobs's shoes.

Jacobs's shouting stirred Uribe's neighbors, who called the police. When a marked police car drove down Uribe's street, Johnny Roy, another Varrio Chico gang member, yelled "cops" in Spanish and everyone fled.

When the officers left Uribe's neighborhood later that night, Jacobs, Salazar, Uribe, and Roy returned to get the Blazer before they headed to another apartment complex. On the way, Salazar noticed there was blood on the passenger side door handle, the passenger side window, the center console, and the steering wheel. At the apartment complex, Jacobs and his passengers attempted to clean the blood from the car, but they could not clean it all.

A woman living near the crime scene discovered Gonzales's bloody backpack at a nearby bus stop the next morning. She informed the police, and the police discovered Gonzales's body nearby. A knife was stuck in the ground near the body and a lengthy trail of blood led across the street.

Forensic investigators determined Gonzales had been stabbed 13 times and bled to death. The wounds penetrated Gonzales's heart, lungs, diaphragm, liver, and spleen. Many of them would have been fatal on their own, though not instantaneously.

A few days later, police searched Jacobs's home and the Blazer. They found a T-shirt, a pair of socks, and a pair of tennis shoes. Police seized all the items and impounded the Blazer. Police also saw Jacobs had a large cut on his finger. Police arrested Jacobs and photographed his hand.

Forensic scientists tested the items for DNA evidence and fingerprints. Though the bloodstains on Jacobs's shoes were faint, as though they had been washed, the scientists determined the shoes contained a mixture of blood from both Jacobs and Gonzales. Jacobs's socks contained only Gonzales's blood. DNA samples taken from Gonzales's backpack matched Gonzales alone.

Forensic scientists also examined the Blazer. Tree leaves and seeds taken from the floor and door jambs of the Blazer were consistent with plant material from the California pepper tree found near the crime scene and throughout Southern California. There was also red paint on the right front wheel that matched the red paint color used on the curb at a bus stop near the crime scene. Finally, blood samples taken from numerous places inside the Blazer matched Jacobs's DNA profile and were inconsistent with Gonzales's DNA profile.

An amended indictment charged Jacobs, L'Hommedieu, Uribe, and others not relevant to the discussion, with conspiracy to commit murder (Pen. Code, §§ 182, subd. (a)(1), 187, subd. (a)),*fn2 murder (§ 187, subd. (a)), and street terrorism (§ 186.22, subd. (a)). As to the murder and conspiracy to commit murder counts, the amended indictment alleged Jacobs, L'Hommedieu, and Uribe committed the crimes for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) As to the murder count, the amended indictment alleged Jacobs and L'Hommedieu committed the murder with a deadly weapon. (§ 12022, subd. (b)(1).)

The First Trial and Appeal

The first trial elicited the facts above, and included testimony from two Varrio Chico gang members who were granted immunity, Roy and Salazar. Roy was a convicted felon who had been imprisoned for numerous crimes, including receiving stolen property, unlawful sex with a minor, and making terrorist threats. Roy originally lied to the police saying two other Varrio Chico members had killed Gonzales. He later changed his story to implicate Vasquez and L'Hommedieu. Roy testified before the grand jury, which he later admitted he also lied to. At trial, Roy testified he, Salazar, and a number of other Varrio Chico gang members went to Uribe's apartment on the night Gonzales was killed. Jacobs, who was completely covered in blood, and his companions arrived at the apartment later that night. Jacobs stripped off his light grey shirt and work clothes, and Roy disposed of them. Minutes later, Roy saw a patrol car in the neighborhood, so he shouted a warning to the rest of the gang, who quickly dispersed. Roy hid behind the Blazer, which he noticed had blood on the bumper. When the officers left, Roy ran down the street only to find Vasquez and L'Hommedieu, who had blood on his grey sweater. Later that night, Roy saw Jacobs, Uribe, and Salazar drive by in the Blazer, so he hitched a ride with them.

Salazar also testified in exchange for immunity. Prior to trial, Salazar, like Roy, claimed only L'Hommedieu and Vasquez were involved in the murder. At trial, Salazar testified Jacobs and his companions returned to Uribe's apartment around 8:45 p.m., and Jacobs was loudly yelling they had stabbed a Varrio Viejo gang member. While Jacobs was changing out of his bloody clothes, he told Salazar he stabbed Gonzales as he turned to use a pay telephone to call Ishi. Salazar said he washed the blood from Jacobs's shoes, and he and Jacobs ran away together when the police arrived. Salazar testified he alone cleaned the blood from Jacobs's Blazer while Jacobs watched.

A jury convicted Jacobs, L'Hommedieu, and Uribe of conspiracy to commit murder, and found they committed the offense for the benefit of a criminal street gang. The jury convicted Jacobs of first degree murder and found true he used a knife and committed the offense for the benefit of a criminal street gang. The jury convicted L'Hommedieu of second degree murder and found true he committed the offense for the benefit of a criminal street gang. The jury was unable to reach a unanimous verdict as to the counts alleged against Uribe, and the trial court declared a mistrial.

Jacobs, L'Hommedieu, and Uribe appealed, contending the trial court improperly required them to appear shackled together at trial and the court erroneously denied Jacobs's and L'Hommedieu's Sixth Amendment confrontation right by admitting Uribe's hearsay statements.*fn3 (People v. Jacobs (Oct. 17, 2001, G026510) [nonpub. opn. at p. 11].) In our prior nonpublished opinion we concluded shackling them together was reversible error because it improperly influenced the jurors by suggesting they were dangerous individuals, which may have lead to their convictions despite the prosecution's relatively weak case. We opined Roy and Salazar were "credibility-challenged." (People v. Jacobs, supra, G026510, at p. 17.) We also held the admission of Uribe's hearsay statements was reversible error because even though the statements were redacted, testimony from the prosecutor's other witnesses allowed the jury to sufficiently fill in the gaps and robbed Jacobs and L'Hommedieu of their Sixth Amendment confrontation rights. (People v. Jacobs, supra, G026510, at pp. 18-21.) We reversed their convictions and remanded for retrial. (People v. Jacobs, supra, G026510, at p. 23.)

The Second Trial

Eight years after the offense, an indictment charged Jacobs with murder (§ 187, subd. (a)), and active participation in a criminal street gang (§ 186.22, subd. (a)). The indictment alleged Jacobs committed the murder while lying in wait (§ 190.2,

subd. (a)(15)), for the benefit of a criminal street gang (§ 186.22, subd. (b)), and while using a deadly weapon (§ 12022, subd. (b)(1)).

Prior to trial, Jacobs filed a motion to dismiss for vindictive prosecution. The trial court denied his motion, and Jacobs sought a writ of prohibition/mandate from this court. We denied the writ petition.

Trial commenced and the prosecutor offered the same facts outlined above, though the prosecutor offered two new witnesses. As relevant to our discussion, the prosecutor introduced the testimony of L'Hommedieu and Uribe, Jacobs's co-defendants in the first trial, whom had since been offered immunity in exchange for their testimony.

L'Hommedieu testified he was a Varrio Chico associate who had been childhood friends with Vasquez, Martinez, and Penuelas--though he barely knew Jacobs, Roy, or Salazar, and had only seen them in passing.*fn4 L'Hommedieu stated he was at Uribe's home partying when Vasquez told him to come have some fun with a few of the gang members. L'Hommedieu, thinking they were going to get girls, decided to join them. He testified he was in the backseat of the Blazer at the time the killing took place, but turned his head away as soon as he heard Gonzales scream. He never saw anyone stab Gonzales. L'Hommedieu also testified he walked home alone minutes after he arrived at Uribe's apartment. He threw away his bloodied undershirt as he left, leaving on his white T-shirt and black jacket.

Uribe testified there were a number of Varrio Chico gang members in his apartment partying. L'Hommedieu was showing everyone his switchblade knife when Jacobs announced, "Let's go to San Juan."*fn5 Jacobs told everyone one knife was not going to be enough so Uribe gave Jacobs several kitchen knives that were "the biggest knives [he'd] ever seen," measuring around a foot long. According to Uribe, he and several other Varrio Chico gang members remained in his apartment while Jacobs and his group were gone for nearly two hours. When Jacobs and his companions returned, Uribe noticed L'Hommedieu, Vasquez, and Jacobs were bloodied, and there was a large cut on Jacobs's finger. While other Varrio Chico members were cleaning the blood off Jacobs, Uribe examined the Blazer and found blood on the driver's side windshield and interior door handle, and the passenger side of the vehicle.

Salazar and Roy testified again at the second trial. Salazar testified in substantially the same manner as he had in the first trial, including that there was no talk of retaliation at Uribe's apartment that night. Roy testified he fled when the police arrived but soon caught up with L'Hommedieu and Vasquez, who were walking to the beach with a bag of bloodied clothing in order to dispose of the evidence. Roy further testified he did not ride in the Blazer with Jacobs later that evening, though he previously testified he did.

The prosecutor offered, and the trial court admitted into evidence, excerpts of letters Jacobs wrote to Varrio Chico gang members while he was in prison in 1996 and 1997. In the first letter, from May 1996, Jacobs lamented the sorry state of Varrio Chico and its loss of toughness and respect. In the second letter, from January 1997, Jacobs expressed his desire to regain his gang's good reputation, and he would do it himself if others were not willing to help. In the third letter, from May 1997, Jacobs stated members of other gangs no longer wanted to associate with Varrio Chico because of its bad reputation. The court also admitted a letter Jacobs wrote to Ivan Lepe in 1993 where he stated, "Daddy right here has already blasted for the Varrio [three] times."

Jacobs testified in his own defense. His testimony painted a dramatically different picture of the events. Jacobs testified he was paroled in 1997, about eight weeks before the murder. Although he tried to straighten his life out, he eventually met up with his old Varrio Chico friends. Jacobs had never met L'Hommedieu, Vasquez, Penuelas, or Martinez because they were younger and belonged to a clique in the gang with Roy and Salazar.

As a parolee, Jacobs could be pulled over and searched at any time while driving. Jacobs's sister, who owned the white Blazer, refused to let Jacobs drive her car so he drove his father's car, a Pontiac Bonneville. When his father loaned the Bonneville to a family friend during the weekend of the killing, Jacobs drove the Blazer. Jacobs had been snorting methamphetamine the day before the killing. While he was driving the Blazer, he developed a bloody nose and sneezed, dispersing his blood throughout the vehicle's driver's side.

Jacobs went to Uribe's apartment after he got off work at 5 p.m., on the night of the offense. He stayed for a couple of hours, went to Albertsons to buy beer for Uribe's father, and returned home at approximately 8 p.m., where he ate dinner and retired to his bedroom for the night.

Sometime between 9 p.m. and 10 p.m. that night, Roy called Jacobs and asked him to bring two changes of clothes to a nearby parking lot. Jacobs dressed himself in a T-shirt, shorts, socks, and white tennis shoes and brought the clothes to the parking lot. Upon arrival, Jacobs saw a light-colored Ford Bronco parked under a carport. As he approached the car, he saw Roy, Salazar, L'Hommedieu, Vasquez, and one other person. L'Hommedieu and Vasquez were covered in blood and had requested the change of clothes. Jacobs gave them the bag of clothes and they stripped off their bloodied garments, throwing them at Jacobs's feet. Jacobs piled up the bloody clothes, threw them away in a nearby dumpster, and drove home.

The investigators came to Jacobs's house three days after the murder. They impounded Jacobs's socks and shoes and noticed Jacobs had three or four cuts on his hands, which Jacobs told them he received from a sharp faucet at work several days before the murder. The investigator asked him where he had been on the night of the offense, at which point Jacobs lied and said he was at home because he was afraid he had violated parole. Law enforcement officers arrested Jacobs four days after the offense for a parole violation.

Investigators searched the Blazer and recovered 23 fingerprints. The fingerprints were compared to all the Varrio Chico members, but the prints only matched Jacobs, Uribe, and one other gang member who was not present on the day of the offense. Jacobs's prints, however, were not found anywhere inside the Blazer, but only on the vehicle's exterior.

Other defense witnesses testified they heard yelling in Spanish on the night of the killing and saw short men dressed in clothing dissimilar to Jacobs's work uniform fighting in the lot. Jacobs's co-worker testified the sinks at the shop where Jacobs worked were sharp and corroded, and could easily cut through flesh. Jacobs's mother testified none of Jacobs's work uniforms were missing, and a worker at the uniform shop that supplied Jacobs's uniform said his account had been credited for one set of missing pants and shirt--though he could not remember whether the items were found or merely credited to their account. Jacobs's mother also testified Jacobs knew the Gonzales family and was friends with Gonzales's brother. The jury also heard evidence Jacobs's sister had a habit of striking curbs while parking and that many of the curbs at her high school and throughout San Clemente were painted with the same red color extracted from the Blazer's wheels. Jacobs's sister also testified she did not clean her Blazer, and she did not remember damaging her car's wheel.

Both parties introduced expert testimony concerning when Jacobs had injured his hand. According to the prosecutor's expert, a forensic pathologist, it was impossible to determine the age of a wound from a photograph, but he said it was around three to seven days old, though it could be as old as 10 days depending on the size of the original wound. Jacobs's expert, an emergency room physician, concluded the wound was between seven and 10 days old, and it was impossible the wound could have only been three days old when investigators photographed the wound.

The jury convicted Jacobs of all charges, and found true all the enhancements. The trial court sentenced Jacobs to life in prison without the possibility of parole, plus a consecutive one-year sentence for the knife use enhancement and a concurrent two-year term for the gang participation conviction.

DISCUSSION

I. Lying-in-Wait Special Circumstance

A. Vindictive Prosecution

Jacobs contends the prosecutor vindictively prosecuted him by alleging the lying-in-wait special circumstance for the first time on retrial. We disagree.

"To punish a person because he has done what the law plainly allows him to do is a due process violation 'of the most basic sort. [Citation.]'" (United States v. Goodwin (1982) 457 U.S. 368, 372.) Vindictive prosecution, the idea that a prosecutor punishes a defendant for asserting a statutory or constitutional right by increasing the severity of the charges, is therefore generally prohibited. (Id. at pp. 372-374.) Due to this general prohibition, "an inference of vindictive prosecution is raised if, upon retrial after a successful appeal, the prosecution increases the charges so that the defendant faces a sentence potentially more severe than the sentence he or she faced at the first trial." (People v. Ledesma (2006) 39 Cal.4th 641, 731.) Pursuant to this inference, the actual intent of the prosecutor is irrelevant, and no actual retaliatory or vindictive motivation is necessary for a properly grounded vindictive prosecution claim. (Blackledge v. Perry (1974) 417 U.S. 21, 28.) Therefore, "[i]n order to rebut the presumption of vindictiveness, the prosecution must demonstrate that (1) the increase in charge was justified by some objective change in circumstances or in the state of the evidence which legitimately influenced the charging process and (2) that the new information could not reasonably have been discovered at the time the prosecution exercised its discretion to bring the original charge." (In re Bower (1985) 38 Cal.3d 865, 879 (Bower).)

The original indictment charged Jacobs with conspiracy to commit murder, murder (with personal knife use and street terrorism enhancements), and street terrorism. L'Hommedieu, Uribe, and Jacobs were tried together. The jury convicted Jacobs of all offenses and found true all enhancements. Jacobs appealed. In our prior nonpublished opinion, this court reversed his conviction and remanded to the trial court for a retrial. Before Jacobs's retrial, the prosecutor entered into immunity agreements with Uribe and L'Hommedieu in exchange for their testimony. The new grand jury indictment, based primarily on L'Hommedieu's testimony, charged Jacobs with murder and street terrorism. The indictment alleged the same two enhancements in the first trial as well as a new special circumstance--committing the murder while lying in wait. The lying-in-wait allegation carried an increased sentence of life in prison without the possibility of parole and rendered Jacobs ineligible for bail.

Jacobs filed a motion to dismiss the indictment, alleging the prosecutor increased the charges against him in retaliation for prevailing on appeal. The prosecutor opposed the motion, stating the lying-in-wait allegation was added because there was an "objective change in the circumstances or in the state of the evidence which legitimately influenced the charging process." L'Hommedieu, according to the prosecutor, was a "percipient witness" who was not only unavailable at the first trial but was the prosecutor's only percipient witness since he was riding in the car with Jacobs on the night of the murder. Further, the prosecutor claimed had he alleged the lying-in-wait special circumstance allegation without L'Hommedieu's testimony, the allegation would have been unsuccessful.

At a hearing on the motion to dismiss, after hearing arguments from counsel, the trial court reserved ruling on the motion because it wanted to conduct additional research.*fn6 The following month, the court conducted a second hearing. After considering the arguments, the court denied Jacobs's motion to dismiss, concluding the prosecutor successfully rebutted the presumption of prosecutorial vindictiveness by satisfying both elements of the Bower test. (Bower, supra, 38 Cal.3d at p. 879.) As to the first prong, the court reasoned L'Hommedieu's testimony "adds a new dimension . . . an eyewitness account of what transpired, leading up to the actual killing; and an eyewitness account of a lying in wait." The court also considered whether L'Hommedieu's testimony could be considered new evidence because L'Hommedieu had previously been interviewed by the police, but the court concluded the statements could not be considered because the trial judge at the first trial ruled they were inadmissible pursuant to Miranda.*fn7 With respect to the second prong, the court explained "L'Hommedieu was uncooperative from the get-go, because there's apparently a good length of time where [the prosecutor] sought L'Hommedieu's cooperation. And for a number of years, two or three years, he just refused to do so." The court reasoned further that "inferences can be drawn from [the prosecutor's] declaration that there's no way L'Hommedieu is going to testify. He said it for three years. And until Uribe . . . rolled over, also known as agreed to cooperate, L'Hommedieu was a dead letter. That is that his testimony was simply not going to be forthcoming." However, the court also noted even though "[t]here's an assertion in here that previously L'Hommedieu had not agreed to testify . . . . The one thing in this case that I wish I had before me, so that I could put this to rest, is whether or not -- was there an overture made early on, prior to the first trial to [convince] L'Hommedieu to testify? [¶] I think that's a pretty significant thing. That is that an effort was made. Is it necessary that there be a showing here that they tried? That there be some declaration, or something to show that they tried to get L'Hommedieu to roll over, prior to the first trial? I don't think so. [¶] I think the prosecution would have a better case were that contained in [the prosecutor's] declaration, or some other prosecutor's declaration, showing that they did try to do that early on; but I simply just -- I don't think that's necessary."

Based on the entire record, we conclude the trial court properly denied Jacob's motion to dismiss the lying-in-wait special circumstance. After prevailing on appeal, Jacobs awaited retrial, but before a retrial could commence, the prosecutor granted L'Hommedieu immunity in exchange for testifying against Jacobs. The prosecutor relied on L'Hommedieu's testimony to file a new allegation against Jacobs, the lying-in-wait special circumstance, which carried with it the significantly weightier punishment of life in prison without the possibility of parole. Because Jacobs successfully appealed his conviction and the prosecutor charged him with a new allegation, we find the presumption of vindictive prosecution applies here, and we must determine whether the prosecutor rebutted that presumption.

Bower, supra, 38 Cal.3d 865, is instructive. Bower requires the prosecutor to rebut the presumption of prosecutorial vindictiveness by first showing increasing the charges was justified by the admission of new evidence or an objective change in the state of the evidence such that there was a legitimate influence on the charging process. Jacobs alleges L'Hommedieu's testimony was not new evidence because the prosecutor had ample evidence to prove the lying-in-wait allegation at the first trial, including L'Hommedieu's confession to the police after he was arrested, and Salazar's testimony. Jacobs's argument misses the mark, and we agree L'Hommedieu's testimony provided the prosecutor with new evidence to successfully allege the lying-in-wait special circumstance against Jacobs.

We first consider L'Hommedieu's statements to the police after his arrest. Though the prosecutor was aware of the statements at the time of the first trial, the trial court ruled them inadmissible pursuant to Miranda. As to Salazar's testimony, he was not a passenger in the Blazer on the night of the murder. All of Salazar's statements surrounding Jacobs's actions prior to his arrival at Uribe's apartment were also based on hearsay. According to Salazar's testimony, which in our prior nonpublished opinion we concluded was lacking in credibility, he did not witness the killing and his testimony was based on what he heard from Jacobs while Jacobs was changing out of his bloody clothes. Given that Salazar was thoroughly impeached throughout his testimony, the evidence in the first trial supporting the lying-in-wait special circumstance allegation was undeniably weak.

L'Hommedieu's testimony provided the prosecutor with evidence to support the lying-in-wait special circumstance. L'Hommedieu was the only eyewitness who could testify against Jacobs. Although L'Hommedieu's testimony was substantially similar to Salazar's, L'Hommedieu was in the Blazer that night. L'Hommedieu was present when Jacobs lied to Gonzales, waited for Gonzales to walk into the dark field, and unexpectedly attacked Gonzales. Even though L'Hommedieu admitted he closed his eyes as he heard Gonzales scream, L'Hommedieu saw enough of the events to allow a jury to reasonably conclude Jacobs murdered Gonzales while lying in wait. As the trial court correctly surmised, L'Hommedieu was able to provide a new dimension to the prosecutor's claims even though he testified about facts that had been offered at the first trial. Having found L'Hommedieu's testimony qualifies as new evidence under the first prong of the Bower test, we move to the second prong.

The second prong of the Bower test requires the prosecutor to demonstrate the new evidence could not have reasonably been discovered prior to the first trial. Jacobs argues the prosecutor could have persuaded L'Hommedieu to testify had the prosecutor offered L'Hommedieu immunity (as he did after the first appeal), and the prosecutor made no attempt to confer immunity on L'Hommedieu prior to the first trial. According to Jacobs, therefore, the prosecutor was entirely responsible for making L'Hommedieu unavailable to testify against Jacobs in the first trial, and should not now be permitted to "confer immunity on random co-defendants and punish the remaining co-defendants for asserting their right to appeal by increasing the charges against them." We agree with the Attorney General that Jacobs oversimplifies the facts surrounding L'Hommedieu's decision to testify in the second trial.

We first consider Jacobs's argument the only reason L'Hommedieu was unavailable to testify at the first trial was because he was a co-defendant. Prosecutors enjoy broad discretion in determining whom to prosecute and what charges to file. "[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." (Bordenkircher v. Hayes (1978) 434 U.S. 357, 364, fn. omitted.) In prosecuting L'Hommedieu, the prosecutor validly exercised his discretion, and the evidence at the time tended to show L'Hommedieu may have played a large role in Gonzales's murder. Based on the evidence at that time, the prosecutor determined L'Hommedieu may have participated in the Gonzales murder and filed charges accordingly. We therefore defer to the prosecutor's charging decision as a valid exercise of his power to charge L'Hommedieu prior to the first trial. (People v. Valli (2010) 187 Cal.App.4th 786, 801.)

As the trial court stated, the prosecutor would have had a much stronger case had he produced evidence he made an effort to convince L'Hommedieu to testify against Jacobs at the first trial.*fn8 Regardless, there was sufficient evidence to conclude L'Hommedieu was not reasonably available as a witness at the first trial.

Although the prosecutor did not offer any documentation detailing any attempts to secure L'Hommedieu as a witness at the first trial, there is significant evidence from which one can reasonably infer L'Hommedieu was uncooperative and unwilling to testify from the outset. L'Hommedieu's police interview transcript shows L'Hommedieu was afraid of what kind of trouble he could get in if he "ratted out" his fellow Varrio Chico gang members. After this court reversed Jacobs's, L'Hommedieu's, and Uribe's convictions, the prosecutor attempted to persuade L'Hommedieu and Uribe to testify against Jacobs on retrial. Uribe and L'Hommedieu refused to cooperate for four years. In 2005, Uribe was arrested for possession of methamphetamine and soon thereafter decided to accept the prosecutor's offer of immunity in June 2005. The prosecutor informed L'Hommedieu's attorney Uribe had agreed to testify. Three or four weeks after Uribe "flipped," Uribe called L'Hommedieu and told him that he "should step it up, as well" and testify against Jacobs. It was not until the prosecutor again extended L'Hommedieu an offer of immunity in October 2005 that L'Hommedieu finally decided to testify against Jacobs. He was interviewed in November 2005, and testified in front of the grand jury 10 days later.

Considering the extensive amount of time that passed, it is reasonable to infer L'Hommedieu was unwilling to testify against Jacobs at the first trial. L'Hommedieu waited until the only other remaining Varrio Chico gang member, Uribe, accepted immunity before he considered the prosecutor's offer. Further, L'Hommedieu did not accept the prosecutor's offer until Uribe called L'Hommedieu, personally informed L'Hommedieu he had immunity conferred on him, and told L'Hommedieu to consider the bigger picture. L'Hommedieu was unwilling to testify until he spent time in prison, learned Uribe decided to testify, read the deal Uribe received from the prosecutor, spoke to Uribe, considered the offer for a few months, and finally decided testifying was the proper course of action. Based on all these facts, it is reasonable to conclude L'Hommedieu would have been unwilling to testify against Jacobs at the first trial even had he not been a co-defendant.

Robinson v. Superior Court (1986) 181 Cal.App.3d 746 (Robinson), is instructive. Defendant in Robinson was charged with two counts of committing lewd and lascivious acts on his daughter over a four-year span. (Id. at p. 748.) The jury found him guilty as charged, but the trial court granted defendant's motion for a new trial on the ground evidence of uncharged offenses was improperly admitted against him. (Ibid.) Prior to the new trial, the prosecutor filed an amended information which increased the two counts of lewd and lascivious acts to 111 counts, which the court reduced to five counts. (Id. at pp. 748-749.) Defendant moved to dismiss the remaining counts for vindictive prosecution, but the trial court denied his motion. (Id. at p. 749.) The court held the prosecutor properly rebutted the presumption of vindictive prosecution because "the new charges were added due to an unexpected change in the state of evidence," which "brought about a drastic reduction in the quantum of admissible evidence and thus legitimately influenced the charging decision of the prosecutor." (Id. at pp. 749-750.)

Like Robinson, L'Hommedieu's co-defendant status in the first trial, and the court's exclusion of L'Hommedieu's statements to police, significantly reduced the quantum of admissible evidence to the point that a lying-in-wait allegation would have been impossible to prove beyond a reasonable doubt. At the second trial, L'Hommedieu, the only percipient witness available to the prosecutor, decided to testify against Jacobs. This was a drastic change stemming from "an intervening unexpected circumstance." (Robinson, supra, 181 Cal.App.3d at p. 750.) The prosecutor, who now had a percipient witness to testify about the events prior to Gonzales's murder, could properly allege the lying-in-wait allegation, as his intent had been from the beginning. Therefore, like the prosecutor in Robinson, who "did not increase the original charges in order to penalize the defendant or retaliate for his invocation of his statutory right," the prosecutor here initially intended to allege the lying-in-wait special circumstance, but was barred by the lack of evidence. (Ibid.) L'Hommedieu's decision to testify was "an unexpected change in the state of evidence" necessary to permit the prosecutor to bring an allegation he had intended to bring all along.

Jacobs next argues the trial court mistakenly relied on the prosecutor's charging discretion in rendering his ruling below. During the hearing, the court stated, "And the courts need to use great discretion and a good deal of caution in interfering with the executive charging branch's charging authority. So, I'm giving some deference to the people's executive power to become a member of the third branch." Jacobs reads the court's statement in isolation to argue the court denied Jacobs's motion merely because prosecutors enjoy near unchecked power to charge. In context, however, the court made its comment well after it had determined L'Hommedieu's testimony was new evidence and he would not have testified at the first trial under any circumstances.

Finally, Jacobs asserts the lying-in-wait special circumstance must be reversed because there was evidence of actual prosecutorial vindictiveness--not merely a presumption resulting from the increased charges. However "the courts have consistently refused to attempt to ascertain the subjective intent of the prosecutor" (Bower, supra, 38 Cal.3d at p. 878), and we decline the invitation to do so here. Accordingly, we conclude this is not a case of vindictive prosecution. The prosecutor rebutted the presumption of vindictive prosecution that arose when on retrial he alleged the lying-in-wait special circumstances against Jacobs.

B. Sufficiency of the Evidence

Jacobs contends there was insufficient evidence to conclude he committed the murder while lying in wait. We disagree.

When evaluating a sufficiency of the evidence claim, "the standard of review is settled. 'A reviewing court faced with such a claim determines "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citations.] We examine the record to determine "whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] Further, "[we presume] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" [Citations.]" (People v. Moon (2005) 37 Cal.4th 1, 22 (Moon).) The same standard of review applies when we evaluate a special circumstances finding. (People v. Michaels (2002) 28 Cal.4th 486, 515 (Michaels).)

The requirements for lying in wait have been amended since the murders occurred in 1997. Although the statute today requires the murder be committed "by means of" lying in wait (§ 190.2, subd. (a)(15)), the statute in 1997 was more stringent, and required the murder to be committed "while" lying in wait.*fn9 (§ 190.2, former subd. (a)(15).) The controlling statute stated, in pertinent part: "The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found . . . to be true: [¶] . . . [¶] The defendant intentionally killed the victim while lying in wait." (§ 190.2, former subd. (a)(15).) Accordingly, the "special circumstance requires proof of 'an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage.' [Citations.]" (Michaels, supra, 28 Cal.4th at p. 516.)

"[T]he lying-in-wait special circumstance requires 'that the killing take place during the period of concealment and watchful waiting . . . .' [Citation.]" (People v. Cruz (2008) 44 Cal.4th 636, 679.) Physical concealment is not necessary to satisfy the concealment of purpose requirement. (People v. Carpenter (1997) 15 Cal.4th 312, 388, superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) In addition, there is not a set period of time required to fulfill the watching and waiting requirement. (People v. Poindexter (2006) 144 Cal.App.4th 572, 585.) Even though a waiting period may be extraordinarily short, the period is sufficient so long as it reasonably shows the murder did not result from panic or sudden impulse. (Moon, supra, 37 Cal.4th at p. 24.) Finally, the attack does not have to occur immediately, and a defendant may continue to wait until the perfect moment to strike when the victim's vulnerability is at its peak. (People v. Ceja (1993) 4 Cal.4th 1134, 1145.) We conclude the record contains sufficient evidence from which the jury could reasonably conclude Jacobs committed the murder while lying in wait.

Several witnesses, including L'Hommedieu, testified about the events leading to Gonzales's murder. Jacobs, L'Hommedieu, Vasquez, and two other gang members were driving in San Juan Capistrano under the cover of darkness looking for a Varrio Viejo member to "gangbang." Jacobs devised a ruse to gain the trust and confidence of the Varrio Viejo gang members they came across. He would tell them that he was looking to party with Ishi, a well known Varrio Viejo member, who he claimed to have met while in jail. As the story went, Ishi told Jacobs he wanted to party with him when he got out of jail, but Ishi forgot to give Jacobs his telephone number, so he needed a Varrio Viejo member to call for him. But Jacobs's guise went even further. If asked whether he was a "chuntaro" or Vario Chico gang member, he would respond he was from a gang in Santa Ana, which was an ally of Varrio Viejo.

Unsuccessful with their ruse on the first victim, Vasquez spotted Gonzales at a local gas station, standing alone using a pay telephone. Jacobs approached Gonzales and told him the concocted story, concealing his purpose by saying he was looking for people to party with, slyly checking for gang affiliation. Gonzales seemed compliant, but Jacobs let him walk toward a nearby dark, desolate field out of sight from the glow of the gas station's lamps.

As Jacobs and his companions drove from the gas station, Vasquez saw Gonzales enter the field. Jacobs made a U-turn and stopped the vehicle adjacent to a nearby tree. Jacobs and Vasquez leapt from the Blazer, knives in hand, and grabbed an alarmed Gonzales from behind. The stabbing commenced almost instantly from the moment Gonzales was in Varrio Chico's clutches.

In an effort to persuade us the record does not support the lying-in-wait enhancement, Jacobs argues lying in wait requires that Jacobs lured Gonzales to a secluded spot on a pretext. (People v. Bonilla (2007) 41 Cal.4th 313, 331-332, fn. 6.) Though luring the victim to a secluded spot where an attack can take place is the "classic lying-in-wait" scenario, it is by no means the only scenario that will support such a finding. (Ibid.) Jacobs concealed his purpose by creating a fictional tale of how he and his companions were looking for a Varrio Viejo member to party with--never disclosing they were rival Varrio Chico members out to seek revenge on the anniversary of their fallen friend's murder. Jacobs further watched and waited until Gonzales entered a secluded area, the nearby field, so he could launch his attack away from any eyewitnesses. Finally, Jacobs surprised Gonzales with his attack, catching him completely off guard when he was at his most vulnerable--walking through the field on his way home that night. Thus, a reasonable jury could conclude Jacobs committed murder while lying in wait.

C. Valid Ground for Special Circumstance Finding

Jacobs asserts the jury's finding he committed the murder while lying in wait could have been based on an erroneous legal theory. The thrust of Jacobs's argument is that because the lying-in-wait special circumstance may only be applied if Jacobs personally intended to kill Gonzales, application of the special circumstance was in error because the jury's verdict could have been based on the natural and probable consequences theory, which did not require the jury to find he personally intended to kill Gonzales. Not so.

The trial court instructed the jury as follows: "[Jacobs] is charged with the special circumstance of murder committed while lying in wait [in violation of former section 190.2, subdivision (a)(15)]. [¶] To prove that this special circumstance is true, the People must prove that: [¶] 1. [Jacobs] intentionally killed . . . Gonzales [¶] AND [¶] 2. [Jacobs] committed the murder while lying in wait. [¶] A person commits murder while lying in wait if: [¶] 1. He concealed his purpose from the person killed; [¶] 2. He waited or watched for an opportunity to act; [¶] 3. Immediately after watching and waiting, he made a surprise attack on the person killed from a position of advantage; [¶] AND [¶] 4. He intended to kill the person by taking the person by surprise." (CALCRIM No. 727 Special Circumstances: Lying in Wait - Before March 8, 2000, italics added.) The jury was further instructed: "The following crimes [and allegations] require a specific intent or mental state: First and second degree murder (count 1), street terrorism (count 2), the special circumstance of lying in wait, the allegation "for the benefit . . . of a gang. [¶] For you to find a person guilty of these crimes or to find the allegations true, that person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state." (CALCRIM No. 252 Union of Act and Intent: General and Specific Intent Together, italics added.)

Based on the entire charge, the jury was fully instructed the lying-in-wait special circumstance required the jury to find Jacobs harbored an intent to kill. We disagree with Jacobs's argument the jury would have disregarded all the above instructions and instead determined the lying-in-wait special circumstance could have applied to Jacobs even if he only intended to commit simple assault and never intended Gonzales's death. "'We presume that jurors understand and follow the court's instructions' [citations] . . . ." (People v. Hovarter (2008) 44 Cal.4th 983, 1005.) Jacobs offers no compelling reason to depart from this rule when the instructions are legally correct and clear.

Jacobs, however, further asserts it cannot be presumed the jury followed the trial court's instructions because in closing argument, the prosecutor told the jury it could find the lying-in-wait special circumstance true even if the jury relied on the natural and probable consequences theory to convict Jacobs for first degree murder. We disagree. The trial court instructed the jury with CALCRIM No. 200, "Duties of Judge and Jury," explaining that if the attorneys' comments on the law conflicted with the instructions, the jury must follow the trial court's instructions. Again, we presume the jury followed the court's instructions.

Jacobs relies on People v. Roy (1989) 207 Cal.App.3d 642, 649-650, to argue the jury could have interpreted the prosecutor's argument and the jury instructions to convict Jacobs on the basis he aided and abetted an assault on Gonzales, the natural and probable consequence of which was the murder. In Roy, the trial court instructed the jury with a plethora of instructions that combined guilt and penalty phases such that the jury was told it could find the special circumstance true regardless of whether the murder was a natural and probable consequence of the lesser crime. (Id. at p. 652.) As we fully explained above, this is simply not the case here. The trial court instructed the jury it must conclude Jacobs intentionally killed Gonzales for the lying-in-wait special circumstance to apply, and we presume the jury followed the court's instructions.

In any event, as we fully explain above, there was overwhelming evidence Jacobs intentionally stabbed and killed Gonzales. Jacobs and his companions drove through claimed Varrio Viejo gang territory with the desire to exact revenge on the rival gang for the slaying of a Varrio Chico member one year earlier. Jacobs, after confirming Gonzales was a Varrio Viejo member, leapt from the Blazer with a knife in his hand, grabbed Gonzales from behind, and stabbed him numerous times. Given the extent of Gonzales's wounds, the jury could have easily deduced Jacobs's intent was far more than just to assault Gonzales that night. Thus, based on the entire charge, we conclude the jury did not find the lying-in-wait special circumstance true on a legally erroneous theory.

II. Prosecutorial Misconduct

Jacobs contends the prosecutor committed seven instances of misconduct during closing argument. We address each contention in turn.

Before we address the merits of his claims, we address the Attorney General's contention Jacobs forfeited appellate review of all but one of his contentions. "To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety." (People v. Cole (2004) 33 Cal.4th 1158, 1201.) Aside from Jacobs's argument the prosecutor attempted to incite the jury's passions, defense counsel failed to object to any of the other instances of alleged prosecutorial misconduct. Normally, we would find Jacobs forfeited appellate review of those alleged instances of prosecutorial misconduct he failed to object to. However, because he also argues he received ineffective assistance of counsel, we will address the merits of his claims.

"'"'"A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.'"' [Citation.] Conduct by a prosecutor that does render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves '"'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"' [Citation.]" (People v. Ayala (2000) 23 Cal.4th 225, 283-284.) "[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (Id. at p. 284.) "In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 970 (Frye), overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 420 (Doolin).) "[W]e may not reverse the judgment if it is not reasonably probable that a result more favorable to the defendant would have been reached in its absence. [Citation.]" (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)

A. References to Facts Not in Evidence

Jacobs claims the prosecutor erroneously referenced facts not in evidence when he discussed Jacobs's sister's fingerprints and described Jacobs's jailhouse letters. Although we conclude the prosecutor erred, Jacobs was not prejudiced.

First, during closing argument the prosecutor made the following comments about the fingerprint evidence found in the Blazer: "No fingerprints in the Blazer . . . . Just because a person touches a surface does not mean that they're going to leave a fingerprint. You can't age fingerprints, either . . . . [¶] And also . . . Jacobs was in that vehicle for three days, four days. He said he drove it all over the place, none of his fingerprints were found inside that vehicle. None. [¶] So does that mean he wasn't there? No. How about on the outside where they were found on the outside? Why do you think, maybe that was maybe because he was touching, cleaning up the car? [¶] How about [Jacobs's sister's] - any indication of [Jacobs's sister's] fingerprints were there? No. [¶] So I mean just because there's no fingerprints found in that vehicle doesn't mean these individuals weren't there. We also don't know the areas that were tested in that truck. We don't even know if they went into the back seat. They just dusted . . . . [Y]ou don't just dust every single surface in a vehicle, for heavens sake. I mean there's different surfaces and they have different abilities to retain fingerprints in oils."

"At closing argument a party is entitled both to discuss the evidence and to comment on reasonable inferences that may be drawn therefrom. [Citations.]" (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales).) It is impermissible however, for a prosecutor to "go beyond the evidence in his argument to the jury. [Citation.] To do so may suggest the existence of 'facts' outside the record--a suggestion that is hard for the defendant to challenge and hence is unfair." (People v. Benson (1990) 52 Cal.3d 754, 794-795.)

It was undisputed Jacobs's sister owned the Blazer and Jacobs had been driving it for several days prior to the killing. Evidence was also admitted to show Jacobs's fingerprints were found on the outside of the vehicle but not inside. The only fingerprints found inside the vehicle were from Uribe and another Varrio Chico member, and there were no fingerprints from L'Hommedieu, Vasquez, Penuelas, or Martinez who were all, according to testimony, present in the Blazer on the night of the killing. The record is silent however as to whether law enforcement officers had Jacob's sister's fingerprints or searched for them in the Blazer.

While the prosecutor's comment was apparently correct--investigators did not find Jacobs's sister's fingerprints in the Blazer--it is unclear whether investigators attempted to match her fingerprints to those found in the vehicle. While it was proper for the prosecutor to argue investigators did not recover fingerprints of people who investigators searched for, it was erroneous to argue investigators did not recover fingerprints of people who investigators did not search for. At best, the prosecutor's statement was a passing comment on the voluminous evidence. At worst, the prosecutor's statement was a misleading interpretation of the fingerprint evidence. We believe the prosecutor's statement, while improper, was "a small part of the prosecutor's very lengthy review of the evidence presented." (People v. Sandoval (1992)

4 Cal.4th 155, 184.) The comment was buried in the middle of the prosecutor's closing argument, consisted of a single sentence, and was made long before the jury began deliberation. It is not reasonably likely the jury construed the prosecutor's statements in an impermissible fashion.

Next, in discussing Jacobs's wish to have the remaining portions of his jailhouse letters admitted, the prosecutor commented as follows: "Jacobs, the rules have never applied to him. He tried to draw a dichotomy between himself and what he was back in 1993, 1997, but it was obvious here to you folks that outburst he had and the arguing with the judge and wanting to go into evidence that wasn't admissible and saying it was all my fault. It's the court's ruling, it's not my ruling, folks. [¶] You know there's a lot of stuff I would love to be able to get into in criminal trials and we can't because it's not relevant or the judge rules it inadmissible for other reasons. You have to live with that stuff. And I'm not here - I wish I could give you the whole background of this case. I wish I could tell you everything. But none of that stuff is relevant. Not relevant. But [Jacobs] doesn't care."

"'Statements of supposed facts not in evidence, either because never offered, or offered and excluded or stricken, or admitted for a limited purpose outside the scope of the comment, are a highly prejudicial form of misconduct, and a frequent basis for reversal. The effect of such remarks is to lead the jury to believe that the district attorney, a sworn officer of the court, has information which the defendant insists on withholding; or that they may consider matters which could not properly be introduced in evidence.'" (People v. Johnson (1981) 121 Cal.App.3d 94, 103.)

Although the remarks were apparently prompted by Jacobs's assertions the prosecutor was intentionally withholding evidence from the jury, we find the prosecutor's statements misleading. To the extent the comments suggested the prosecutor possessed evidence relevant to guilt, those comments were inappropriate because the evidence was not before the jury. To the extent the prosecutor suggested he possessed evidence beyond what the jury could consider, evidence that was not relevant, such comments have no place before the jury. Nevertheless, the prosecutor's statements were fleeting in comparison to his lengthy closing argument, and it is not reasonably likely the jury construed the prosecutor's statements in an impermissible fashion.

B. Appealing to Jury's Emotions

Jacobs claims the prosecutor committed misconduct when he attempted to appeal to the jury's fears and emotions by comparing him to serial killers, dictators, and other sociopaths. We disagree.

While discussing Jacobs's jailhouse letters, the prosecutor stated the following: "Again, you know the defense will say, well, he wrote a lot. He wrote a lot of letters. And you know what, they all don't contain [discussion of the gang and talk of revenge]. [¶] Well, you know what, ladies and gentlemen, Adolf Hitler for as many people as he murdered, he had all kinds of conversation with people that dealt with food, vegetarian dishes, fashion, automobiles, technology. He had a million conversations about that. [¶] In fact, I don't even think there's one document that directly links him to the Holocaust, do you know that? So you know they don't just because he talks about other topics doesn't mean he is not talking about this one. Randy Kraft, Ted Bundy, Jeffrey Dahmer, they all had conversation with other people in every other aspect of their lives that didn't deal with murder. But with something that was definitely primarily on their mind."

At the close of the prosecutor's closing argument, Jacobs moved for a mistrial. The trial court denied Jacobs's motion but told the prosecutor it was dangerous to mention those names and the prosecutor should tell the jury he was not making a direct comparison.

During rebuttal, the prosecutor addressed his prior comments: "When I used the example about . . . Adolf Hitler and Jeffrey Dahmer and those folks, I meant that Hitler and Dahmer and Randy Kraft and all those folks, their level for evil is high. What I was trying to do is draw a contrast between . . . Jacobs and these individuals, Hitler and Dahmer and Randy Kraft and so forth. The purpose was not to suggest to you that [Jacobs] is as evil as Adolf Hitler or anything else. In fact, I was trying to do exactly the opposite, because those are the worst of the worst, in terms of evil people. But my point is, that even very, very evil people talk about subject matters not related to death and murder constantly."

When discussing Jacobs's character evidence in his rebuttal, the prosecutor again brought up the names of various sociopaths. "And again, I can draw distinction [sic] between Adolf Hitler and [Jacobs] in this case. I mean I want to contrast them, is what I'm attempting to do at this point. But you know that they would probably say probably nice things about Adolf, and Adolf had probably friends that knew nothing, didn't believe he was violent, and come into a court subpoenaed say [sic] he is not violent. He don't [sic] have a violent bone in his body. So, that's natural. [¶] Also are the news reports when there's a big crime you find someone has done something, lived in the neighborhood, like the B.T.K. Killer. The guy in Kansas. Again, I'm drawing a contrast here, I'm not comparing . . . Jacobs to the B.T.K. Killer. That was a binding torture case. He was the code enforcement officer. He worked at the church, all those things he had the done [sic] for years. And then in the mid [19]60's, and it turns out that he is a mass murderer. Everybody was just shocked."

"In general, prosecutors should refrain from comparing defendants to historic or fictional villains, especially where the comparisons are wholly inappropriate or unlinked to the evidence." (People v. Bloom (1989) 48 Cal.3d 1194, 1213.) We conclude the prosecutor was not attempting to compare Jacobs to any of the mass murderers the prosecutor referenced. The prosecutor was using the names of infamous historical villains to show they could present evidence similar to what Jacobs had presented. Indeed, the prosecutor was drawing a distinction to show that even the most well known mass murders discussed more than just murdering and could also produce character witnesses to show how delightful and loving they were, just as Jacobs had. (People v. Jones (1997) 15 Cal.4th 119, 180, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [permitting prosecutor to compare defendant to Hitler and Manson to show they too were legally sane when committing murders].) The court admonished the jury and the prosecutor's statements were permissible. Although when considered in their entirety the prosecutor's statements as clarified indicate he was not comparing Jacobs to the historical villains he mentioned, we caution the prosecutor that references to mass murderers are unnecessary, exaggerated, and better off avoided.

C. Use of the Prestige of Office

Jacobs contends the prosecutor vouched for the witnesses' credibility and placed the prestige of his office behind the witnesses when he repeatedly told the jury that, pursuant to the immunity agreements offered to L'Hommedieu, Uribe, and Salazar, they were required to testify truthfully. Not so.

During closing argument the prosecutor stated, "L'Hommedieu apparently he was candid with you. He said you know what, my lawyer did show me Uribe's statement, and I know that Uribe said that I showed him the knife that night. [¶] So if these guys were just trying to say what the [prosecutor] wanted them to say. If that's really what it was, then why wouldn't he say that? Why would he directly contradict Uribe? [¶] You know why? Because he has got a contract that binds me that says that if he doesn't tell the truth - and what this does is, it's meant to give him a motive to be honest. So what happens is he has got a contract that says that if you're honest, you get your deal. That's what happens, you're honest, you get your deal. [¶] So that means that he is free to come in here and corroborate . . . Jacobs, if that's the truth. But he doesn't do that. [¶] And you know why he doesn't do that? Because that's not the truth. And he doesn't want to roll the bones to say something that's a lie that may not be corroborated by the other witnesses. All he can do is come in and tell his story the best that he remembers it."

"A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness at trial. [Citation.] However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' her comments cannot be characterized as improper vouching. [Citations.]" (Frye, supra, 18 Cal.4th at p. 971.) "Impermissible vouching occurs 'where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness's veracity or suggests that information not presented to the jury supports the witness's testimony.' [Citation.]" (People v. Zambrano (2007) 41 Cal.4th 1082, 1167, overruled on other grounds in Doolin, supra, 45 Cal.4th at p. 420.) Prosecutors, however, have an "obligation to disclose to the jury any inducements made to a prosecution witness to testify." (Frye, supra, 18 Cal.4th at p. 971.)

The immunity agreements L'Hommedieu, Uribe, and Salazar entered into were properly admitted into evidence during the trial and all the prosecutor's statements informed the jury that L'Hommedieu and the witnesses were required to tell the truth pursuant to the terms of the immunity agreements. The prosecutor never made any comments that could have been interpreted as vouching for their veracity, and the prosecutor later admitted Roy had lied during the first trial. At no point did the prosecutor ask the jury to believe the prosecution's witnesses based on the prosecutor's personal knowledge or belief, or based on information not presented to the jury. The prosecutor instead directed the jury to consider the terms of the immunity agreements the Varrio Chico members entered into. The prosecutor's witnesses had each signed an immunity agreement which required them to testify truthfully, the prosecutor was obligated to admit the terms of the immunity agreement into evidence, and the prosecutor reminded the jury of the terms of the immunity agreement during closing argument. The prosecutor's statements were proper.

D. Implying Deception

Jacobs argues the prosecutor erred by improperly implying defense counsel deceived the jury, believed Jacobs was guilty, and fabricated the defense. We disagree.

During his closing argument, while commenting on the discrepancies between counsels' versions of the facts, the prosecutor stated, "And the defense counsel will get up here, with all due respect to [defense counsel], he is a very, a very nice man, he is a very good lawyer. And what he will do is he will say, well, the blood on the socks, that's susceptible of two reasonable interpretations of the evidence." The prosecutor then explained how Jacobs's defense counsel would present his case, by showing there were other reasons for all the evidence, and that the prosecution's witnesses were liars. The prosecutor went on to say, "You know, that's the kind of the way you have to weave yourself through the evidence. And I'm not mocking [defense counsel] at all. I apologize, I didn't mean to do that if I sounded that way because I have nothing but a lot of respect for him. [¶] What's happening is, is that he has to weave his way through all this stuff, and it just don't [sic] make any sense."

During his rebuttal, the prosecutor made the following statements when discussing Jacobs's sister's lack of knowledge of certain facts: "If you talk to a witness who has to come into court and testify and you ask them a question about an area that is outside their expertise, the proper response is you know what, I don't really know. But these are lay people and that's okay, I'm not holding that against [Jacobs's sister]. It's [defense counsel] who should really be held responsible for that for asking." Finally, during rebuttal, the prosecutor commented on the patrol car video Jacobs claimed was "photo shopped": "Well look at where [the police officers] are located and look at the Blazer. You see? This isn't a trick. It's no photo shopping. It's none of that. [¶] What you have to do, ladies and gentlemen, is you have to look at the evidence in the case. Because if you don't look at all the evidence what happens is you get a skewed view. You get a spun view on what it means. It's just a big spin. We took this 10 years ago - I'm sorry, nine years ago. We didn't even know. Just like the shoes were diluted, we didn't even know. We're just not that smart, we're not here to frame people. We go where the evidence takes us."

"Although counsel have broad discretion in discussing the legal and factual merits of a case [citation], it is improper . . . to resort to personal attacks on the integrity of opposing counsel." (People v. Bell (1989) 49 Cal.3d 502, 538.) "Nevertheless, the prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account. [Citations.]" (People v. Bemore (2000) 22 Cal.4th 809, 846.)

None of the prosecutor's comments could reasonably be deemed an attack on defense counsel or to paint defense counsel as deceptive. Each of the prosecutor's remarks described what defense counsel had done during trial and how defense counsel had argued the case. The prosecutor reminded the jury to view the evidence objectively without being misled by defense counsel's interpretation. The prosecutor summarized the crux of the defendant's interpretation of the case and directed the jury to consider that he was offering the only reasonable interpretation from the evidence presented. None of the prosecutor's comments served as a personal attack on defense counsel. (People v. Cunningham (2001) 25 Cal.4th 926, 1002-1003 [permitting prosecutor to tell jury defense counsel's job was to "create straw men," "put up smoke, red herrings," and "they have done a heck of a good job" at it].)

E. Misstatement of Law

Jacobs asserts the prosecutor misstated the law by telling the jury L'Hommedieu's, Uribe's, Roy's, and Salazar's testimony corroborated each other's testimony. Again, we disagree.

Early in the prosecutor's closing argument, the prosecutor told the jury, "We're just not going to take the accomplice's word for it alone. There has to be a little bit of corroborating evidence which tends to connect the defendant to the crime." The prosecutor continued to explain there was "boat loads of corroborating evidence" in the case to corroborate the accomplice testimony, including the bloody shoes, the video of the Blazer, the pepper tree foliage, and the cut on Jacobs's finger. Later in the closing argument, after the prosecutor had discussed the accomplice testimony, the prosecutor stated, "But I know this: Is that each one of these individuals [L'Hommedieu, Uribe, Roy, and Salazar] corroborate one another."

"'[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]' [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 829-830.)

The prosecutor's last comment, which Jacobs objects to, did not misstate the law. "[T]he question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (Morales, supra, 25 Cal.4th at p. 44.) The prosecutor fully disclosed the requirements of how and why accomplice testimony must be corroborated, and it was not until much later in the prosecutor's argument that he referenced any corroboration between the Varrio Chico gang member witnesses. At that point, the prosecutor had refreshed the jury's memory as to the plethora of evidence that supported the accomplices' testimony. The prosecutor informed the jury the evidence showed L'Hommedieu and the other alleged accomplices agreed to testify because they had immunity, the evidence demonstrated Roy lied in the past, and the evidence established all four Varrio Chico gang members recounted substantially similar stories. The prosecutor used the word corroborated because, under the common definition of the word, they told essentially the same story, even though the testimony of any accomplice could not legally corroborate the testimony of another accomplice. The prosecutor did not suggest the testimony of a fellow accomplice was legally sufficient corroboration.

In a related contention, Jacobs argues the prosecutor misstated the law by telling the jury it could find the lying-in-wait special circumstance true even if it convicted Jacobs of the murder using the natural and probable consequences theory. Not so.

Soon after addressing the accomplice testimony requirements discussed above, the prosecutor told the jury about the various ways they could find Jacobs liable for Gonzales's murder, including the natural and probable consequences theory. The prosecutor further stated, "First degree murder is killing with premeditation and deliberation, or a killing by means of lying in wait. [¶] Now, you can see that, you can see why it doesn't matter how you - if you get to one place, it doesn't matter how you get there, whether it's aider and abettor, principal or aider and abettor, natural and probable consequences, but you've got to get to the same place. So you don't have to agree on the theory of liability. But you do have to agree on the degree. So that does require a unanimous decision. And that makes sense, because if six of you were to think that it's a second degree murder and six of you think it's a first degree murder, you're not ending up at the same place. Those are different crimes, okay. [¶] So you do have to agree on the degree. But you do not have to agree on the theory. [¶] If you decide that the first degree murder was committed by somebody and then Jacobs is liable whether he did it himself or whether somebody else did it, and he is responsible for it, there will be a special circumstance. And the special circumstance is lying in wait, as well. [¶] And what happens is the judge will read that to you and it - basically you have to make a decision whether it is true or not true. [¶] And it's a very similar to the - it's very similar to the language that is found in the first degree murder instruction about lying in wait. And what happens is also I believe that the rules, the aiding and abetting and everything else comes into play on that kind of stuff, as well. [¶] You know what, I'm going to make sure, I'm going to just check that again. I think that's correct, but you know what, I just want to read that instruction one more time to make sure that's right. Maybe on the rebuttal I'll come back and address that point. All right. [¶] It is true if they do it themselves, you look at the lying in wait here, you don't have to be unanimous on how he is liable for the special circumstance, I want to review that again, I just want to make sure."

The prosecutor told the jury they could rely on any of the theories of liability to convict Jacobs of murder and if all the jurors determined Jacobs was liable for first degree murder, they would be required to determine if any of the special circumstances, including lying in wait, applied. The prosecutor never stated the jury could convict Jacobs of first degree murder based on the natural and probable consequences theory and also find the lying-in-wait special circumstance true based on the natural and probable consequences theory. Nevertheless, the prosecutor made it clear the trial court would properly instruct the jury on the law regarding the lying-in-wait special circumstance, and the prosecutor unabashedly told the jury he was not entirely prepared on the lying-in-wait special circumstance and he may address it on rebuttal. Thus, based on the totality of the prosecutor's comments, the jury could not have interpreted the prosecutor's comments as instructing the jury it could find Jacobs guilty of first degree murder based on the natural and probable consequences doctrine and also find the lying-in-wait special circumstance true based on the natural and probable consequences theory. Instead the prosecutor argued the jury must find Jacobs committed first degree murder first before it could find any of the special circumstances true, and that the jury must follow the trial court's instructions.

In any event, the trial court instructed the jury with CALCRIM Nos. 200 and 222. CALCRIM No. 200 stated: "You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." CALCRIM No. 222 provided: "You must use only the evidence that was presented in this courtroom. 'Evidence' is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence. [¶] Nothing that the attorneys say is evidence. In their opening and closing arguments, the attorneys discuss the case, but their remarks are not evidence."

"We presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade." (People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8.) Because the instructions cured any possible misstatements of the law, we conclude Jacobs was not prejudiced. Additionally, as we explain above, to the extent Jacobs challenges the sufficiency of the evidence, there was overwhelming evidence supporting his convictions and the jury's findings on the enhancements.

III. Admissibility of Jailhouse Letters

Relying on Evidence Code section 356, Jacobs claims the trial court erroneously admitted portions of his jailhouse letters without admitting the remaining portions and additional letters. Again, we disagree.

Admissibility of the remaining portions of evidence when an excerpt has been admitted is controlled by Evidence Code section 356, which provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." Evidence Code section 356 is designed "to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed." (People v. Arias (1996) 13 Cal.4th 92, 156.) It "allows further inquiry into otherwise inadmissible matter only, (1) where it relates to the same subject, and (2) it is necessary to make the already introduced conversation understood. Thus it has been held: the court must exclude such additional evidence if not relevant to the conversation already in evidence. [Citation.]" (People v. Gambos (1970) 5 Cal.App.3d 187, 192-193 (Gambos).) "[S]uch evidence may be excluded at the court's discretion if it does not serve to clarify or explain that which was admitted on direct testimony, or if the proponent of the evidence will not be seriously prejudiced by its exclusion." (People v. Von Villas (1992) 10 Cal.App.4th 201, 272.) We review the trial court's decision for an abuse of discretion. (People v. Parrish (2007) 152 Cal.App.4th 263, 274.)

Here, Jacobs wrote 17 jailhouse letters to Varrio Chico gang member Tito Trujillo between 1996 and 1997. The prosecutor moved to admit excerpts from three of the letters because the excerpts were relevant to the intent and premeditation/deliberation requirements necessary for first degree murder. Each of the excerpts portrayed Jacobs as having a clear goal: he was tired of Varrio Chico being ridiculed by other gangs and wanted to restore Varrio Chico's good name and exact revenge on Varrio Viejo for killing Diaz and three other Varrio Chico members, even if he had to do all of the work himself.

At trial, Jacobs moved to admit the remaining portions of the three letters, along with the other 14 letters, on the grounds they were necessary to place the admitted portions of the letters into context. Jacobs also argued the entirety of the letters were necessary to show Jacobs was not a fluent Spanish speaker and he was not Varrio Chico's president. The trial court explained the remaining portions of the letters did not place the excerpted portions in context and were not relevant to the case. The court ruled the remaining portions inadmissible but permitted Jacobs to discuss them in his testimony.

The portions of the letters Jacobs moved to admit into evidence were not related to the same subject as the excerpts the prosecutor introduced and the trial court admitted. Nor were they necessary to give the jury a better understanding of the excerpted portions.

The first admitted letter, from May 31, 1996, showed Jacobs was angry about the current state of Varrio Chico. Jacobs was sick of the other Varrio Chico members constantly partying, acting like killing one of their colleagues was not a big deal, and fighting amongst themselves. Jacobs was disgusted by the overall feeling of laziness and entitlement that permeated throughout the gang.

The excluded portions of the first letter began by thanking Trujillo for the letter. Jacobs then tried to cheer up Trujillo by giving him advice about how to resolve things with his former girlfriend after getting out of prison. Nearly two pages of Jacobs counseling Trujillo preceded the excerpted portion. The excerpted portion was followed by Jacobs's telling Trujillo how much he missed his girlfriend even though she left him five years ago. Jacobs then explained how tired he was of hanging around with guys in prison, how he wanted to be with a woman, and how angry he gets when he sees happy couples on television. This was followed by a diatribe about the way the criminal justice system worked and how upset he was about his impending transfer to another prison. The letter closed with nearly two pages of Jacobs asking Trujillo to "guilt trip" a girl Jacobs blamed for getting him sent to prison.

In the second admitted letter, from January 22, 1997, Jacobs discussed his plans for when he was released from prison. The letter disclosed he was going to find some loyal gangsters and use them to restore Varrio Chico's good reputation. He was tired of the incompetence infecting the gang and told Trujillo the rest of Varrio Chico's gang members were "a bunch of cowards whose hearts pump kool-aid."

The excluded portions of the second letter began with Jacobs telling Trujillo how happy he was upon hearing Trujillo was going to be a father and how Trujillo should turn his life around and move to another city in Orange County. Jacobs then told Trujillo how much fun he is having in prison, working out, laughing with the other inmates, and having snowball fights--he even wished he could spend more time there. The excerpted portion followed. Jacobs then described what else he wanted to do after he was released. Instead of spending money on drugs and alcohol, Jacobs wanted to hire prostitutes and have sex. He would then go back to his old neighborhood and wait until he was arrested again for a parole violation because he felt he could not start a new life until his parole had expired.

The third admitted letter, from March 3, 1997, showed Jacobs jovially telling Trujillo about Varrio Chico's reputation amongst the other gangs. From Jacobs's point of view, gang members from other gangs did not want to talk to Varrio Chico members because they "heard about our reputation, and don't want to know us. Ha!"

The excluded portions of the third letter were much shorter than the other two letters. In the first pages, Jacobs told Trujillo one of his good friends arrived in prison and he was going to be spending lots of time over the next few days catching up with him. Jacobs then gave Trujillo more advice on how to keep up his relationship with his girlfriend, and provided Trujillo with suggestions on names for his daughter. The letter closed with the excerpted portion.

With respect to the excluded portions of these three letters, we find neither requirement of the Gambos test fulfilled. First, nothing from the inadmissible portions of the letters had any relation to the subjects disclosed in the admitted portions. The admitted portions dealt with Jacobs's desire to boost Varrio Chico's credibility and reputation as a gang, and how he was willing to do almost anything to get Varrio Chico back on track. Conversely, the remainder of the letters merely discussed relationships with girlfriends, how much fun Jacobs was having in prison, and how the criminal justice system was working against Jacobs. Second, the inadmissible portions did not elucidate the admitted portions as each admitted excerpt was unambiguous. Thus, the trial court properly admitted only the excerpted portions of the letters, and ruled inadmissible the remaining portions Jacobs sought to admit.

Jacobs also argues the trial court should have admitted the other 14 jailhouse letters to provide context and rebut the four letters' portrayal of him as a violent person. Based on our review of these letters,*fn10 we conclude Jacobs is mistaken. These letters contained more examples of Jacobs attempting to help Trujillo repair his relationships, Jacobs's love of prison, and discussions of Jacobs's hopes to date a new girl when he was released from prison. Jacobs self-serving statements about faith and his love for animals were not relevant and would have done little if anything to bolster his credibility.

Thus, the trial court properly excluded these letters as they were not relevant to the disclosed portions. Because we conclude the trial court properly admitted portions of Jacobs's jailhouse letters and not the letters in their entirety, we need not address Jacobs's claim he was unable to present a defense. (People v. Abilez (2007) 41 Cal.4th 472, 503 [application of ordinary evidentiary rules under state law do not violate criminal defendant's federal constitutional right to present defense].)

IV. Impeachment Via Juvenile Record

Jacobs claims the trial court erroneously excluded evidence of L'Hommedieu's prior juvenile adjudication for possession of a firearm for impeachment purposes. Again, we disagree.

Juvenile adjudications are civil, not criminal, by their nature, and may not be used for impeachment. (People v. Burton (1989) 48 Cal.3d 843, 861.) However, as long as the conduct underlying the juvenile adjudication involved moral turpitude, admission is permissible. (People v. Wheeler (1992) 4 Cal.4th 284, 295 (Wheeler).) While conduct involving moral turpitude is generally admissible, "a misdemeanor--or any other conduct not amounting to a felony--is a less forceful indicator of immoral character or dishonesty than is a felony." (Id. at p. 296.) In summary, "the prosecution may introduce prior conduct evincing moral turpitude even if such conduct was the subject of a juvenile adjudication, subject, of course, to the restrictions imposed under Evidence Code section 352 and other applicable evidentiary limitations." (People v. Lee (1994) 28 Cal.App.4th 1724, 1740.)

During cross-examination, Jacobs requested permission to impeach L'Hommedieu with evidence of his prior juvenile adjudication. Jacobs said, "I believe his charge was possession of [a] gun in a gang allegation." Neither Jacobs, the prosecutor, nor the court knew if the petition against L'Hommedieu was sustained, but Jacobs alleged it was sustained because L'Hommedieu was sentenced to juvenile hall. The trial court excluded, without prejudice, evidence of the prior juvenile adjudication. The court reasoned: "Number one, it's juvenile. Number two, we really don't know what it is. The court's looking at the list of crimes which the courts have had to be moral turpitude, and even under Wheeler you have to look at moral turpitude, the court looked at CEB California Criminal Law section 24.46, and found nothing close." The trial court noted it would reconsider its ruling should Jacobs discover more information about the juvenile adjudication.

Given the uncertainty of the underlying conduct, we find the trial court properly excluded evidence of the juvenile adjudication. Jacobs's offer of proof was that L'Hommedieu had some juvenile adjudication in his record involving possession of a firearm. Jacobs did not know any of the specifics of the crime charged or whether the petition was sustained. The trial court gave Jacobs the opportunity to present the court with additional evidence of L'Hommedieu's juvenile adjudication or the underlying conduct. Jacobs, however, never provided the trial court with any additional information.

Even if the trial court erroneously excluded the juvenile adjudication, Jacobs was not prejudiced. While it is beyond doubt L'Hommedieu was the prosecutor's key witness, impeachment with a juvenile adjudication would have weighed only slightly against L'Hommedieu's credibility. Assuming, for the sake of argument, the juvenile adjudication was possession of a firearm by a gang member, as Jacobs alleged, the moral implications of such a crime do not carry the same weight that a crime involving dishonesty would. The jury was also fully apprised of the fact L'Hommedieu had been charged with Gonzales's murder and he was testifying under a grant of immunity. Considering the evidence before the jury and the substantial evidence against Jacobs, even if the trial court admitted L'Hommedieu's juvenile adjudication, it is not reasonably probable the result of the proceeding would have been different.

V. Accomplice Jury Instructions

Jacobs asserts the trial court erroneously failed to instruct the jury Roy and Salazar were accomplices as a matter of law. Jacobs further contends the accomplice instruction was incomplete and did not fully describe the various legal theories by which Roy and Salazar could be deemed accomplices. Neither contention has merit. "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."

(§ 1111.) Accordingly, accomplices include all persons who were involved in the commission of the crime, including those who directly participated, aided and abetted, or encouraged its commission, but does not extend to accessories since they are not liable for the identical offense. (People v. Fauber (1992) 2 Cal.4th 792, 833-834.) "Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences to be drawn therefrom. [Citation.] The burden is on the defendant to prove by a preponderance of the evidence that a witness is an accomplice. [Citation.]" (Id. at p. 834.) A trial court is permitted to "decide as a matter of law whether a witness is or is not an accomplice only when the facts regarding the witness's criminal culpability are 'clear and undisputed.' [Citations.]" (People v. Williams (1997) 16 Cal.4th 635, 679.) Courts must leave the issue as a "question of fact for the jury unless the evidence permits only a single inference." (People v. Sully (1991) 53 Cal.3d 1195, 1227.)

Jacobs insists the court should have instructed the jury Roy and Salazar were accomplices as a matter of law because they were co-conspirators, or at least aiders and abettors. He claims it could be inferred "the parties positively or tacitly came to a mutual understanding to commit a crime," thereby satisfying the requirement for a conspiracy (People v. Cooks (1983) 141 Cal.App.3d 224, 311), or aided and abetted the commission of the murder. Whether Roy and Salazar were accomplices was a question of fact for the jury to decide.

Roy testified he arrived at Uribe's apartment 15 or 20 minutes before Jacobs returned from San Juan Capistrano. Jacobs returned soon after Roy arrived, loudly boasting about killing someone. Roy further testified he had not seen Jacobs at any time prior to the murder and as far as he knew there were no plans for retaliation on the anniversary of Diaz's death. Salazar testified he did not arrive at Uribe's apartment until after Jacobs and his companions left for San Juan Capistrano "to go take care of some stuff." Salazar stated there was no talk of retaliation at Uribe's apartment that night. Salazar testified he did not know about the murder until Jacobs returned to Uribe's apartment nearly an hour later. Even though their testimony could be questioned, it was corroborated by Uribe and L'Hommedieu, who also testified Roy and Salazar arrived at Uribe's apartment after Jacobs had already left. Given the testimony, which did not establish Roy and Salazar played any part in the planning or preparation of the murder, the trial court properly concluded whether Roy and Salazar were accomplices was for the jury to decide because the evidence did not permit a single inference.

Jacobs also argues that because the prosecutor conceded Roy and Salazar were accomplices as a matter of law in the first trial, the trial court should have ruled them accomplices as a matter of law in the second trial. Not so. The fact the prosecutor conceded the issue in the first trial is not dispositive as to whether Roy and Salazar were accomplices as a matter of law.

In a related contention, Jacobs argues the jury instructions on accomplice testimony did not fully advise the jury as to all the legal theories by which they could determine Roy and Salazar were accomplices. Jacobs relies on the fact the trial court struck the language "or participate in a criminal conspiracy to commit the crime" from CALCRIM No. 334.*fn11 In addition, Jacobs complains the jury instruction did not inform the jury Roy and Salazar could be held as accomplices under the natural and probable consequences theory. As we explained more fully above, there was insufficient evidence to support the claim that Roy and Salazar were co-conspirators, and the prosecutor did not proceed on that theory.

Further, even if the trial court erred in concluding Roy and Salazar were not accomplices as a matter of law, the jury was still required to determine if Roy and Salazar were accomplices when considering their testimony, and there was sufficient corroborating evidence as required under CALCRIM No. 335. When reviewing jury instructions, "we inquire whether the jury was 'reasonably likely' to have construed them in a manner that violated the defendant's rights." (People v. Whisenhunt (2008) 44 Cal.4th 174, 214.) "A trial court's failure to instruct on accomplice liability under section 1111 is harmless if there is 'sufficient corroborating evidence in the record.' [Citation.] To corroborate the testimony of an accomplice, the prosecution must present 'independent evidence,' that is, evidence that 'tends to connect the defendant with the crime charged' without aid or assistance from the accomplice's testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] '"[T]he corroborative evidence may be slight and entitled to little consideration when standing alone." [Citation.]' [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 562-563.)

Here, even a cursory examination of the record provides sufficient corroborating evidence to support Roy's and Salazar's testimony. Police investigators discovered several items of clothing, most notably Jacobs's socks and sneakers, splattered with Gonzales's blood, consistent with Roy and Salazar statements Jacobs returned to Uribe's apartment covered in blood and threw away everything but his socks and shoes. Roy and Salazar testified Jacobs was driving a white Blazer on the night of Gonzales's murder. Other witnesses also saw a white Blazer near the field where Gonzales was killed. After impounding the vehicle, investigators determined there was red paint on the wheels and pepper tree foliage in the door jams, consistent with the red painted curb and pepper trees located near the scene of the crime. Roy and Salazar also testified they saw an enormous wound on Jacobs's finger after he returned to the apartment that night. Police investigators saw a similarly large cut on Jacobs's finger when they searched his home, and investigators photographed it shortly after they took Jacobs into custody. It was certainly reasonable for the jury to conclude Roy's and Salazar's statements were amply corroborated by other independent evidence.

VI. Misstatement of Law

Jacobs contends that, under the natural and probable consequences doctrine, jury instruction CALCRIM No. 400 misstated the law. According to Jacobs, the statement "[a] person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it" was incorrect because "once the jury found that one of the accomplices was guilty of first degree murder by stabbing Gonzales, and that some type of a homicide was a foreseeable consequence of a simple assault upon Gonzales that Jacobs aided and abetted, the jurors would automatically find him guilty of first degree murder inasmuch as they were expressly directed that each participant was equally guilty of the same degree of homicide." Although we agree the instruction was misleading, we conclude Jacobs was not prejudiced.

"In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights." (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) "'"[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction."'" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)

People v. Samaniego (2009) 172 Cal.App.4th 1148 (Samaniego), is instructive. In Samaniego, defendant and his accomplices drove to a house occupied by a man they intended to murder. (Id. at p. 1162.) When they discovered the man was not there, defendant and his accomplices killed another person. (Ibid.) At trial, the jury was instructed with CALCRIM No. 400, which provided, as it does here, "[a] person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it." (Id. at p. 1163, italics in original.) The court concluded that the finding an aider and abettor could have more guilt "leads inexorably to the further conclusion that an aider and abettor's guilt may also be less than the perpetrator's." (Id. at p. 1164.) Therefore, "CALCRIM No. 400's direction that '[a] person is equally guilty of the crime [of which the perpetrator is guilty] whether he or she committed it personally or aided and abetted the perpetrator who committed it' [citation], while generally correct in all but the most exceptional circumstances, is misleading here and should have been modified." (Id. at p. 1165.)

The record before us shows the trial court erred similarly as in Samaniego, supra, 172 Cal.App.4th 1148. The use of CALCRIM No. 400 in a case such as this where the prosecutor proceeded on and the trial court instructed the jury on the natural and probable consequences theory, "misdescribes the prosecution's burden in proving the aider and abettor's guilt of first degree murder by eliminating its need to prove the aider and abettor's (1) intent, (2) willfulness, (3) premeditation and (4) deliberation, the mental states for murder." (Samaniego, supra, 172 Cal.App.4th at p. 1165.)

Although this language in CALCRIM No. 400 was confusing, we find the error was harmless. Under the Chapman v. California (1967) 386 U.S. 18, 24, we must determine "whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' [Citations.]" (Neder v. United States (1999) 527 U.S. 1, 15.) Based on the entire record, we are confident this language in CALCRIM No. 400 did not contribute to the verdict. As we explain above, there was overwhelming evidence Jacobs stabbed Gonzales. And, the jury found true Jacobs "personally used a deadly weapon," and thus the jury could not have convicted Jacobs of murder based on the natural and probable consequences theory.

VII. Ineffective Assistance of Council

Jacobs argues that to the extent any of his claims are forfeited, his defense counsel provided ineffective assistance. Because we have addressed the merits of all of Jacobs's claims, we need not address this contention.

VIII. Cumulative Error

Jacobs argues the cumulative effect of the errors violated his due process rights. Although we have concluded the prosecutor erred during closing argument and CALCRIM No. 400 was misleading, we conclude Jacobs was not prejudiced by these errors.

DISPOSITION

The judgment is affirmed.

WE CONCUR: RYLAARSDAM, ACTING P. J. FYBEL, J.


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